On November 20th, Judge James Robart, who oversees the implementation of SPD’s consent decree directing police reform, issued an order asking the parties in the case to submit briefs on how two issues should influence his ruling on whether the city is in initial compliance with the consent decree: the shooting last June of Charleena Lyles, and the recent signing of new collective bargaining agreement with SPMA. The deadline to file those briefs was last Friday.
The city, the DOJ, and the CPC each filed a brief in response. All three maintain their earlier position: that the judge should find the city in initial compliance now, which triggers a 2-year period during which it must stay in compliance before the consent decree is lifted. They all agree that the decision on initial compliance is based on a set of evaluations completed by the federally-appointed monitor, the last of which was filed earlier this year. They don’t believe that anything that happens subsequent to the last report should influence the decision on initial compliance, but instead argue that subsequent events such as the Charleena Lyles shooting should be taken under consideration in evaluations as to whether the city is remaining in compliance for the following two years. To that end, they point out that the Lyles shooting is still under investigation and review, with an inquest scheduled for April 2018, so it would be premature to factor it into any judicial conclusions. Finally, they point out that the Force Review Board process was designed and adopted as part of the consent decree process, and as such it would be improper to undermine it.
They reach a similar conclusion for the SPMA contract: while it may not be perfect, it is alignment with the consent decree. It is out of synch in a few places with the recently-passed police accountability legislation, but since Robart chose to wait until the negotiations with both unions were complete before approving on the police accountability legislation in case further changes need to be made by the City Council, the parties urged Robart to stay on that path independently of the declaration of initial compliance.
The parties point out that the consent decree does not actually require everything that is in the police accountability legislation, and in fact is silent on the issue of post-disciplinary appeals, one of the most contentious areas where the SPMA agreement conflicts with the police accountability legislation. So regardless of how that issue is eventually resolved, it doesn’t reflect upon compliance.
But lest you think this will all go smoothly, there’s a wrench in the works: last week the estate of Charleena Lyles filed an emergency motion to intervene in the case and file its own brief related to whether the city is in initial compliance with the consent decree. Their brief gives a different account of what happened that morning in Lyles’ apartment, not surprisingly casting fault upon the police officers. It justifies its motion to intervene on the notion that the judge’s findings in the Consent Decree case might impact the estate’s ability to sue the city (e.g. a wrongful death suit). There is already litigation on that matter in King County Superior Court. The Lyles motion was filed with the court before SPD released the Force Review Board’s report and the accompanying materials, which explains some of the conflict in narratives between SPD and the Lyles.
The City of Seattle has filed a brief opposing the Lyles estate’s emergency motion to intervene. It argues that the Consent Decree case is about a “pattern or practice” of the use of excessive force, and not about any individual case, and they point out that if the Lyles estate were allowed to intervene then by that logic anyone suing the city over excessive use of police force would also have the right to intervene. It also argues that as a matter of law, the Lyles estate doesn’t have standing to intervene, and certainly not as an emergency motion.
Whether Robart chooses to allow the Lyles estate to intervene will probably depend on whether he sees systemic issues remaining within SPD. But with both the DOJ and CPC arguing otherwise, and the review process on the Lyles shooting still incomplete, he has plenty of room to agree with the parties that this should all be handled as standard process within the two years that the city must sustain compliance.
There is one nagging (if narrow) question that has come out of the Lyles investigation that the filing on her behalf raises: what should officers do when confronted with someone armed with a knife or another kind of edged weapon? If the FRP is to be believed, the officers who shot Lyles had no alternative, because none of the less-lethal tools potentially at their disposal (baton, pepper spray, taser) were appropriate for the circumstances in which the officers found themselves. Is the rule really that if an officer is threatened at close range with a knife, he or she is expected to draw a gun? Is there really no less-lethal defense? This is exactly the kind of question that the new Office of the Inspector General and the reshaped CPC are intended to take up, and hopefully they will in the days and weeks to come.
And we will shortly see how Robart moves forward with the question of whether SPD is in initial compliance with the Consent Decree.